Supreme Court to consider whether absence of EIA and Appropriate Assessment was irrationally inconsistent with conditions imposed

Background Facts:

The case arose out of the granting of planning permission for a lorry park, barley silos with wash bay and ancillary facilities; the proposed development being 400m away from the River Wensum, a Site of Special Scientific Interest ("SSSI") and a designated EU Special Area of Conversation ("SAC"). The claimant, Matthew Champion, a member of the Ryburgh Village Action Group, sought to quash: (i) the grant of planning permission by North Norfolk District Council, and (ii) the consultation response made by Natural England.

The claimant argued that given the risks of pollutants entering the river from the site, as well as the light, noise and other effects of the development, there should be an Environmental Impact Assessment ("EIA") and Appropriate Assessment under the Habitats Directive implemented by the Habitats Regulations 2010. The claimant also argued that the Council's decision was "internally inconsistent and irrational." This is because the Council had, on the one hand, decided there was no need for an EIA or Habitats Appropriate Assessment and therefore deemed there to be no pollution risk, whilst on the other hand had imposed planning conditions that required the monitoring of and, if necessary, improvement of the water quality by the landowner.

High Court:

The High Court held that the decision as to whether an EIA or Appropriate Assessment was required was one for the relevant authority, subject to the irrationality test. The High Court agreed with the claimant that the local authority could not rationally adopt both positions at once. The Council's Development Control Committee would have to determine the relevant risk of pollutants entering the river. If there was no risk, the Committee could grant planning permission, but would not be entitled to impose the planning conditions. If there was such a risk the Committee would have to require an Appropriate Assessment and an EIA be obtained.

Court of Appeal:

The Court of Appeal however overturned the High Court decision. The court held that there was no inconsistency between the two positions adopted by the local authority; they were "sequential and separate aspects of the decision-making process and reasoning." The fact that the Directives were taken into account in deciding to impose the conditions meant that the requirements of the Directives could not be met in the absence of the conditions. Additionally, the court rejected the argument that the Committee was not in a position to make a lawful decision as to whether the development was likely to have significant effects on the River Wensum SSSI and SAC. Whilst the decision-making process got off to a bad start, with a flawed screening opinion, the Committee was given sufficient information to enable it to reach a proper conclusion on all relevant matters, and that the conclusion it reached was reasonably open on the materials before it.

Supreme Court:

Mr Champion has now been granted permission to appeal to the Supreme Court, which will provide useful guidance on rational decision making in this difficult area.

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